The Research Of Discrimination Against The Citizens Who Have The Criminal Records In Employment

Employment is very important for constructing the harmonious society. Now, there are many kinds of discrimination in employment in China. The discrimination against the citizens who have the criminal records is one of them.The investigation on the employment of the citizens who have the criminal records in Shanghai shows that although the government took many measures to help the citizens who have the criminal records find the job, the real employment of the citizens who have the criminal records is very bad. One of the reasons of the bad employment is the severe discrimination against the citizens who have the criminal records. There are many statutes in China that limit the employment qualifications of the citizens who have the criminal records severely and definitely. The types of the limited occupation are very broad and result in the severe separation of the occupation.From the point of view of anti-discrimination, we should define the"criminal records"broadly. The definition of the discrimination against the criminal records should be any unreasonable differential treatment against the citizens who have the criminal records. The purpose of the treatment is to deduct, limit or deprive the legal rights of the citizens who have the criminal records. At present, the main discrimination against the citizens who have the criminal records in China is the direct discrimination. The requirement of such kind of discrimination is that the limiting or depriving the legal rights of the citizens who have the criminal records constituted the unreasonable differential treatment. The key issue of the discrimination against the citizens who have the criminal records is whether the differential treatment is reasonable.The deprivation or limitation on the employment qualification of the citizens who have the criminal records in China's statutes constitutes the differential treatment. From the view of recompense punishment and the safeguarding the security of the society, such kind of limitation has some reasonable basis. However, in fact, such kind of differential treatment is unreasonable. Such kind of differential treatment constitutes unreasonable classification, violates the principle of the punishment being suitable for the conduct; violates the spirits of Marxism philosophy; violates the rights of equal employment; violates many contemporary criminal policies. Using the experience of the principle of proportion in German law for references to analyze the differential treatment, we can conclude that such kind of treatment does not meet the requirements of the principle of suitableness, the principle of necessity and the principle of the balance between the legal interests. In view of the above reasons, the deprivation of employment qualification of the citizens who have the criminal records in China's present statutes constitutes the discrimination.From the point of view of constitution, the essence of the discrimination against the citizens who have the criminal records is the violation of the equal employment rights of the citizens who have the criminal records. The key method of prohibiting the discrimination against the citizens who have the criminal records is protecting the formal equality. The core of protecting the formal equality is guaranteeing the equality from the beginning. The substantive equality is the subsidiary to the formal equality. This kind of differential treatment is contrary to the principle of irrational relationship forbiden.China should make the law of prohibiting the discrimination against the citizens who have the criminal records. The main reasons are the follows: prohibiting the discrimination embodies the justice of law and meets the principle of humanitarianism; prohibiting the discrimination is good for the wrongdoer to return the society again and is benefit for the stability of the society; prohibiting the discrimination meets the needs of developing the market economy; prohibiting the discrimination meets the needs of respecting and protecting the human rights.By comparative study on the limitation of the public servants'qualification of the citizens who have the criminal records, we conclude that China is one of the countries that adopt the strictest limitation of the public servants'qualification of the citizens who have the criminal records. Of all the countries that have made the anti-discrimination law, only a few countries forbid the discrimination based on the criminal records. The legislation on human rights in Canada forbids the discrimination based on the criminal records definitely. There are similar legislations in a few states in USA. American courts adopt the reasonable standards to review the cases of discrimination against the criminal records in judiciary practice. Therefore, most of the cases related to limit the employment qualification of the citizens who have the criminal records are ruled as constitutional. The inspiration drawn from foreign legislation and practice are: China should be lenient in treating the employment qualification of the citizens who have the criminal records, and limits the citizens'employment qualification who have the criminal records that are related to the occupation. China should protect the citizens who have the criminal records from the discrimination in the following three aspects: legislation, carrying out the law and the judiciary remedies.As for the legislation, Firstly, China should forbid the discrimination against the citizens who have the criminal records definitely. China should adhere to the principle of balancing the interests, that is to say, balance the security of the public society and the personal interests of the citizens who have the criminal records, balance the rights of equal employment of the citizens who have the criminal records and the freedom of employment of the employer. At the same time, China should adopt the principle of involvement and benefit for the employee. Secondly, China should abolish or alter the present legislation that limit or deprive the employment qualification of the citizens who have the criminal records step by step. The main proposals are: limiting the employment qualification of the citizens who have the criminal records that are not compatible to the occupation; limiting the employment qualification of the citizens who have the specific crimes; abolishing the limitation of the negligent crimes; abolishing the legislation that have the full-life limitations on the employment qualification; abolishing the limitations of the employment qualification of the citizens who have the records of probationary sentence; abolishing the limitations of the employment qualification of the citizens who have been punished because of improper justifiable defense or necessity; abolishing the limitations of the employment qualification of the citizens who have been released on probation.The administrative departments protect the citizens who have the criminal records from discrimination by enforcing the law correctly. At the same time, in order to protect the rights of equal employment of the citizens who have the criminal records, China should form the three-dimensional litigation systems that meet the china's situation, based on the private litigation (include traditional civil and administrative litigation), complemented by the litigation for public interests, supported by the constitutional litigation.